THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing the conviction after trial and dismissing the indictment (without prejudice), determined the prosecutor did not properly instruct the grand jury on the law and improperly cross-examined the defendant in the grand jury proceedings:

… [T]he prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 NY3d 290 [2012]), that some “affirmative act” is required to prove the crime, and that “viewing computer images of a sexual performance by a child on a computer does not by itself constitute promotion of such images” (CJI2d[NY] Penal Law § 263.15). Although it is well established that a grand jury “need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law” … , we conclude under the circumstances of this case that the deficiencies in the prosecutor’s charge impaired the integrity of the grand jury proceeding and gave rise to the possibility of prejudice. We further conclude that the potential for prejudice was increased by the prosecutor’s cross-examination of defendant during the grand jury presentation in a manner that was “calculated to unfairly create a distinct implication that [defendant] was lying” … . People v Congdon, 2023 NY Slip Op 01622, Fourth Dept 3-24-23

Practice Point: The grand jury should have been instructed that some affirmative act in addition to simply viewing child pornography of a computer is required for the offense of promoting the sexual performance of a child.

Practice Point: The prosecutor increased the prejudice resulting from the improper instruction on the law by improperly cross-examining the defendant in the grand jury proceeding to imply that the defendant was lying.

Practice Point: Even though the defendant was properly convicted at trial, the flaws in the grand jury proceeding required dismissal of the indictment.